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Unanimous SCC confirms Jordan framework on trial delays

The Supreme Court of Canada has sent a very clear message that it won’t roll back the timelines for trials that it set last year in R v Jordan.

In a unanimous decision in R v Cody released June 16, seven judges (including Wagner and Gascon, who dissented in Jordan), ruled that the Supreme Court will not give a break to provincial attorneys general who are struggling with the Jordan timelines. Anecdotal evidence suggests hundreds of stays have been issued in trials of summary and indictable offences across Canada after the Jordan rules were set last year.

In its Friday ruling, the court ruled in favour of an alleged St. John’s cocaine dealer whose drug and weapons charges were stayed at trial after five years of delay caused by actions of both the Crown and the defence. The Newfoundland and Labrador Court of Appeal ruled 2-1 to strike the stay and send the case back for a new trial.

The Supreme Court set out rules dealing with cases tried in transition period, for charges laid before Jordan but adjudicated afterwards. As for post-Jordan cases, the court held firm on timelines.

“A number of the provincial Attorneys General who intervened in this matter asked this court to modify the Jordan framework to provide for more flexibility in deducting and justifying delay,” the Court found. “But Jordan was released a year ago. Like any of this Court’s precedents, it must be followed and cannot be lightly discarded or over-ruled.

“The Jordan framework now governs the s. 11 (b) analysis and, properly applied, already supplied, already provides sufficient flexibility and accounts for the transitional period of time that is required for the criminal justice system to adapt.”

Even though Cody was tried before the Jordan decision under the rules set out in the 1992 case R v Morin -- which included the now-discarded factor of prejudice against the accused -- the court did break down the types of delays that will, or will not, be held against defence counsel under Jordan.

In Friday’s ruling, the court found only illegitimate delays such as frivolous motions by the defence, such as Cody’s motion at trial to force his judge to recuse for bias, will be deducted from calculations for deadlines set out in Jordan. Time spent on normal defence activities will not.

“The only deductible delay... is that which is solely or directly caused by the accused person and flows from the defence action that is illegitimate insomuch as it is not taken in response to the charges,” the Court found.

“Illegitimacy in this context does not necessarily amount to professional or ethical misconduct, but it takes its meaning from the cultural change demanded in Jordan. The determination of whether defence conduct is legitimate is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. Defence conduct encompasses both substance and procedure – the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny.

Judges are to look at defence actions to see if they are designed to delay or exhibit marked inefficiency or marked indifference toward delay.

Time lost for normal mistakes – in Cody’s case, errors in an agreed statement of facts – will also not be counted because, the Supreme Court said, minor mistakes are a normal part of the trial process.

The Jordan timelines can also be extended in cases that are very complex, though complexity is to be determined on a qualitative, not a quantitative analysis during the transitional period, which is roughly six more months for cases tried in provincial courts and two years for superior court trials.

The Court took another shot at what it called in Jordan “the culture of complacency” in the court system. Their suggestions for improvement echoed those made two days earlier in a comprehensive report by the Senate Legal and Constitutional Affairs Committee on trial delays.

“Trial judges should suggest ways to improve efficiency, use their case management powers and not hesitate to summarily dismiss applications and requests the moment it becomes apparent they are frivolous,” the Court said.

“(E)very actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner consistent with an accused person’s right to a trail within a reasonable time. Under the Jordan framework, every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person’s right to a trial within a reasonable time.”

Cody’s lawyer, Michael Crystal, said his client has had the charges hanging over him for seven years and can now get on with his life.

"Everyone benefits by an expeditious trial. No one wants to have allegations hanging over their head for a long time, and for the victims of crime, no one wants to live with the idea that some day they're going to be called upon to tell people what happened to them,” he said.

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